Adams v Commissioner of Police, NSW Police Force

1. The COPS report consisted of three pages (there was no redaction on the third page which contained very little text).
2. All of the content of the first page was released to Mr Adams except for details of the address of the location the police attended, the name (and some associated information) of the "OWNER" and the name and a number in respect of "ORG OF INTEREST". The first page contained a title of the document as a COPS report, provided an event reference number (including, names for the persons creating and updating the COPS report from "SYDNEY CITY PAC"). It then gave, in short form, event summary details, event involved party details, incident details and involved party details.
3. The second page, in addition to the title and event reference number, began with a section above a line of asterisks concerning "Narrative Date/Time Created Created By". In this first section, the same information was redacted as was redacted, along with some extra information about the name of the person redacted on the first page consisting of date of birth, address, mobile phone number and email address. In this section, Mr Adams was disclosed as the "PR", along with his mobile phone number.
4. The unredacted section on the second page below the line of asterisks, with redacted parts identified, consisted of the following:

**************************************

At above time and date, police responded to the job in relation to PR locating a security camera inside the male bathroom at [there followed blanking out of about a one third of the third line of this paragraph and the whole of the fourth line, in which there was specified "T3 (a), T 4 (d)"].

Upon arrival, police met the PR outside the above address. Police were then escorted to the male toilet at [blanking out of about one third of this line, in which there was specified "T4 (d)"] by the PR.

Police observed a security camera attached to the ceiling, which was pointed towards the hand wash.

Police questioned [there followed blanking out of about two thirds of the first line, all of the second, third, fourth and fifth lines and about one quarter of the sixth line, in which there was specified "T 1 (d), T 3 (a), T 4 (d)"]

Police informed [blanking out of about one third of this sixth line, in which there was specified "T 1 (d), T 3 (a)"] needs to take the camera down [there followed blanking out of about one half of the seventh line and all of the eighth line, in which there was specified "T 1 (d), T 3 (a)"]

Police also conducted a check on computer to make sure the camera was not working and found that it was not working.

Police informed [short blanking out in which there was specified T3 (a)] that there will be a record made in relation to this incident.

*****************************************

1. Under s 80 (2) (b) of the NCAT Act, a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. Otherwise, leave to appeal is required.
2. As to leave to appeal, in Collins v Urban [2014] NSWCATAP 17 the Appeal Panel stated (at [84]):

"(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. Mr Adams, who did not have legal representation, raised a number of grounds of appeal. He did not specify whether any of these grounds raised a question of law. He also sought leave to appeal and set out his reasons for doing so.
2. Having considered the grounds of appeal that he referred to in his Notice of Appeal and the material in his written and oral submissions, bearing in mind the approach we should take to an unrepresented litigant referred to in, for example, Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [28], we consider that Mr Adams raised the following questions of law:

(1) The decision was affected by apprehended bias of the Tribunal member (Ground 1).

(2) The Tribunal wrongly construed the public interest consideration against disclosure in cl 1 (d) and, perhaps, also in cll 3 (a),3 (b) and 4(d) of the Table in s 14 of the GIPA Act, as applying to information supplied to an agency by a wrongdoer or prospective wrongdoer or as to applying to information about such a person (Ground 2).

(3) The Tribunal failed to ask itself the right question, or failed to have regard to a relevant consideration, namely whether access should be granted to the whole of the COPS report in circumstances where the redacted parts contained information concerning and/or provided by the wrongdoer or prospective wrongdoer rather than information concerning and/or provided by a witness or confidential informer (Ground 3).

(4) There was procedural unfairness in making the decision (Ground 4).

1. Errors of law include that the Tribunal identified the wrong issue or asked the wrong question, or failed to ask the right question, or that the Tribunal failed to take into account relevant, mandatory considerations; John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13]. There can also be an error of law if there is material procedural unfairness making the decision.
2. We consider that the grounds of appeal raised by Mr Adams for which leave to appeal was required were:

(1) The Tribunal failed to adequately consider the significant public interest in transparency and accountability in circumstances where a decision to withhold information would not properly account for the need to protect the public from potential harm and the importance of holding individuals accountable for misconduct (Ground 5).

(2) The Tribunal gave insufficient weight to concerns about the adequacy of the police investigation in circumstances where it was required to consider the public interest in revealing possible misconduct or negligence by the police in handling the incident (Ground 6).

(3) The Tribunal was incorrect in concluding that alternative legal avenues, such as preliminary discovery, would be sufficient for obtaining the information needed to file a civil proceeding against the alleged wrongdoer (Ground 7).

(4) There was new significant evidence not reasonably available at the time of the primary proceedings concerning potential regulatory violations by the owner of the premises, the adequacy of the police investigation and about the nature of the alleged wrongdoer, namely that redacted information concerned redacted information related to a police informant in respect of an unrelated matter (Ground 8).

(5) The decision was against the weight of the evidence (Ground 9).

1. As it recognised, the Tribunal's task was to decide what the correct and preferable decision was having regard to the material then before it: s 63 (1) of the Administrative Decisions Review Act 1987 (NSW).
2. The Tribunal had before it an unredacted copy of the COPS report on a confidential basis (at [37]) and it is plain from its reasons that it considered the whole of the report, including the redacted parts. It also had before it evidentiary material and submissions from both parties.
3. The Tribunal referred to the relevant provisions of the GIPA Act concerning this task, including the test to be applied as set out in s 13, namely:

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.

1. As to the public interest considerations in favour of disclosure, the Tribunal (at [11]-[13] and [40]) referred to the statutory provisions in the GIPA Act relied upon by Mr Adams, namely the statutory presumption in favour of disclosure in s 5, the legally enforceable right set out in s 9 and the public interest in favour of disclosure in set out in s 12 as follows:

12 Public interest considerations in favour of disclosure

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

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

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

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

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

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

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

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

1. Next, the Tribunal addressed Mr Adams submission that as the "reporter" and "victim" he had a vested interest in understanding the full scope of the investigation and to obtain a comprehensive assessment of the investigative process. The Tribunal acknowledged that the respondent accepted that this was a factor in favour of disclosure. It took account of information from the COPS report and otherwise (he had been present attended and heard at least 80% of the conversation the police had with the person the police spoke to) Mr Adams had obtained about the investigation (Mr Adams had been present when the police attended and heard at least 80% of the conversation the police had with the person the police spoke to) and concluded that Mr Adams interest in his report was a public interest consideration in favour of disclosure but should be given limited weight (at [41]-[44]).
2. The Tribunal (at [45]-[55]) then addressed Mr Adams evidence and submissions that he intended to file a statement of claim against the owner of the café for breach of privacy rights in the context of the importance of transparency and accountability in respect of unlawful conduct. The Tribunal also referred to Mr Adams' intention to submit a complaint to the Law Enforcement Conduct Commission (LECC) concerning the NSW Police Force's handling of the investigation in relation to the camera (and to his evidence that from what he had witnessed the investigation lacked thoroughness) and also intended to file a statement of claim against the NSW Police Force. In this regard, the Tribunal referred to Mr Adams submission that the failure to disclose vital information to him "impedes his ability to pursue legal recourse and hinders transparency and accountability" (at [52]).
3. As to the statement of claim point, the Tribunal concluded that minimal weight should be attributed to this factor. It explained that it did so because it was not apparent that he had a reasonable basis to take legal action against the "business" and it doubted that Mr Adams could reasonably rely upon the COPS report to confirm the identity of the potential defendant, the details of the business or an address for service especially in circumstances where the police had attended in response to Mr Adam's own report (at [50]). Later in the reasons, the Tribunal also referred to the absence of evidence that Mr Adams had made any independent enquiries about the café or its management structure, which also cast doubt upon whether this was, in truth, a motive (at [95]- [96]).
4. As to the complaint to the LECC point, the Tribunal considered (at [53]-[55]) that there was a strong public interest in disclosure of information which could reveal misconduct on the part of an agency or its officers. However, the Tribunal concluded that this factor should be given minimal weight in the circumstances of this matter. In this regard, it referred to the decision in Commissioner of Police v Barrett (2015) NSWCATAP 68 at [136] for the proposition that there must be some reasonable basis in the material before the Tribunal for drawing an imputation that the redacted information could reasonably be expected to reveal misconduct. It concluded that there was nothing in the redacted COPS report which would support the allegations made by Mr Adams.
5. The Tribunal then turned to consider the public interest considerations against disclosure relied upon by the respondent, namely the following aspects set out in Table 14:

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

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

3 Individual rights, judicial processes and natural justice

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

(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,

4 Business interests of agencies and other persons

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 -

(d) prejudice any person's legitimate business, commercial, professional or financial interests,

1. We note that the factors against disclosure relied upon by the respondent before the Tribunal did not include any of the considerations set out in clause 2 of Table 14, including consideration in clause 2 (a) as follows:

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,

1. As to the factor against disclosure in clause 1 (d) above, the Tribunal concluded:

74 On the basis of the evidence provided, I am satisfied that the disclosure of the redacted information could reasonably be expected to prejudice the supply to the NSW Police Force of confidential formation that facilitates the effective exercise of the agency's functions. Further, I am satisfied that this public interest against disclosure should be given significant weight.

75 It is noted that the Respondent made submissions on this issue that included reference to Camilleri and Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252. In his written submissions, the Applicant referred to these cases as supporting the argument that individuals involved in unlawful activities should not benefit from confidentiality protections and submitted that courts have recognised the public interest in holding wrongdoers accountable, outweighing concerns about privacy rights. Reference was made by the Applicant to the decision of Campbell v Mirror Newspapers Ltd. No copy of this case was handed up by the Applicant and it appears that the citation provided by him was incorrect.

76 In any event, I have referred above to the relevant principles in Camilleri and I accept that Camilleri was cited with approval in Australians for Sustainable Development Inc v Barangaroo Delivery Authority at [63]. I accept the submission by the Respondent that there is no dispute that the GIPA Act establishes a regime that gives members of the public an enforceable right to access government information and that it encourages transparency and accountability of government actions.

1. At this point, it is relevant to note that the redaction of the COPS report (as outlined above) specifies reliance upon cl 1 (d), as well as other clause, only in relation to most of the redacted information in the fourth paragraph between the asterisked lines on page 2. It is apparent from the redacted version that, in large part, these redactions in the fourth paragraph contain the content of statements made to the police by the person spoken to.
2. The Tribunal's conclusion that significant weight should be attributed to this public interest consideration followed the Tribunal's analysis of the clause 1 (d) factor in paragraphs [61] to [73], which included reference to the evidence from Ms Drummond presented by the respondent, as well as a consideration of various case law authorities concerning the operation of this provision.
3. As to Ms Drummond's evidence, this was the subject of an affidavit sworn on 10 January 2024. In this affidavit Ms Drummond stated that she had determined the internal review and exhibited a copy of that review. The Tribunal referred to the review earlier in its reasons (at [4]). The internal review included the following passages concerning clause 1 (d):

The information requested includes information given to police in confidence. The collection and storage of information potentially related to criminal activity is central to what police do. I believe that preserving the confidentiality of such information is essential to the NSW Police Force maintaining the community's trust in police matters. If that trust is breached, the flow of information to police officers could dry out, which would severely impact the agency's law enforcement functions.

It is widely accepted that information provided to police carrying out law enforcement and investigative functions by victims_, suspects_ and witnesses is kept confidential [our emphasis]. That information is only disclosed in very limited circumstances and where required by law.

I also note the NSW Police Force "Customer Service Charter" (available online) requires police to maintain the confidentiality of information received from members of the public.

Turning to the issue whether disclosure of the information could reasonably be expected to prejudice the supply of such information to the Agency in future; I note that in Simring v Commissioner of Police (NSW) [2009] NSWSC 270....

1. The internal review report then set out the following passage from the decision in Simring:

69 When a person speaks with the police in respect of a criminal offence and reveal sensitive matters that person expects that statements made will only be used for the purpose of the Court proceedings and not otherwise... There is a strong public interest in criminal offences being reported to the police and the sources of information not drying up. If victims of crime thought that statements made in the course of a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the [GIPA Act], those sources of information may well dry up or at least there could be a reduction in the flow of information available to the police"

1. The Tribunal referred to the first sentence in this passage at [70].
2. The Tribunal expressly referred to Ms Drummond's evidence about the Customer Service Charter (at [61]-[63]). This charter was exhibited to Ms Drummond's affidavit and, relevantly, stated:

1. As to the charter, the Tribunal referred (at [63]) to Ms Drummond's statement in her affidavit that:

24 The NSWPF Customer Service Charter requires police to maintain the confidentiality of information received from members of the public regardless of whether they are individuals who report matters to police, or otherwise assist police in the investigation of matters.

1. The Tribunal also referred (at [62]) to Ms Drummond's affidavit evidence:

25 In my opinion and based on my experience, the disclosure of the redacted parts of the COPS Report would or could prejudice the effective exercise of the NSW PF's functions (specifically, it's law enforcement functions of detecting and investigating crime and protecting the community) by revealing identifying details of an individual an organisation who was subject to report to police and who provided information to police in response to the enquiries and thereby:

a. Undermining the confidence of members of the public that, if they were to assist the NSWPF to provide personal information, their details will be kept confidential;

b. Discouraging members of the public from assisting NSWPF; and

c. Prejudicing the supply of information to the NSWPF.

1. It is pertinent to note at this point that it is apparent, particularly, from paragraphs [63], [69] and [75] of the reasons that the Tribunal was considering the application of clause 1 (d) in circumstances where the redacted information did not concern information provided by an informant or a person reporting matters to the police but, instead concerned a member of the public who was assisting the police with their enquiries and who may have been involved in an unlawful activity.
2. It is also pertinent to note here that we do not see any part of the decisions in Camilleri or Australians for Sustainable Development which supports Mr Adams submission referred to by the Tribunal in paragraph [75] that these cases support the argument that individuals involved in unlawful activity should not benefit from confidentiality protections.
3. As to the factors against disclosure in clauses 3 (a) and (b) in Table 14, the Tribunal concluded;

87 Accordingly, I am satisfied that the public interest considerations against disclosure in cll 3 (a) and (b) with respect to personal information are applicable to my consideration of whether the information should be released. The public interest in protecting and controlling the disclosure of the personal information of another individual should be afforded significant weight, particularly when the release under the GIPA Act of such information means that the information would be released unconditionally. Accordingly, I give significant weight to these public interest considerations against disclosure.

1. Earlier in the reasons, the Tribunal had referred to the proscription in s 73 (1) of the GIPA Act that disclosure of information in response to an access application could not be made the subject of any conditions on the use or disclosure of the information.
2. The Tribunal arrived at the conclusion in [87] after considering the definitions of "personal information" in both the GIPA Act and PPIP Act (at [79]), concluding that there was no doubt the redacted COPS report contains information about an individual whose identity is apparent or can reasonably be ascertained from that information and that Mr Adams had expressly sought the release of the individual's name (at [81]) and concluding (at [83]) that none of the personal information redacted had been revealed (as defined) even though the information may be known to Mr Adams.
3. The Tribunal's conclusion in [81] that there was no doubt the redacted COPS report contained information about an individual whose identity is apparent or can reasonably be ascertained was made in the context where the Tribunal had referred to Guidelines issued by the Information Commissioner which referred to common examples of personal information, relevantly, including the person's name, personal address and contact details, such as email and phone numbers. This strongly suggests that Tribunal's reliance upon the cll 3(a) and (b) considerations was concerned with information of this nature in the redacted version.
4. Finally, as to the factor against disclosure in cl 4 (d), the Tribunal concluded:

92 In the circumstances of this matter, I am satisfied that the release of the redacted information as it relates to the Internet café, could reasonably be expected to prejudice the legitimate business, commercial, professional or financial interests of any third parties involved in that business and I give considerable weight to this public interest consideration against disclosure. In reaching this finding, I've had particular regard to the Applicant's evidence that he has not carried out enquiries into the Internet café, including in relation to the owner of the business, and is intending to rely on the information contained in the COPS Report for the purpose of his legal proceedings, and this appears to include the party/parties that such action would be taken against, and the address for service of any proceedings.

1. The Tribunal then proceeded to carry out the weighing exercise required by 13 of the GIPA Act (at [93]-[99]). In doing so, it considered the objects of the GIPA Act and its provisions, including s 55 concerning personal factors. The personal factor which the Tribunal addressed was Mr Adams motives in seeking access, namely to facilitate legal proceedings by him against the owner of the café and to pursue action against the police for misconduct in the investigation. It was apparent that the Tribunal saw this as, potentially, a factor in favour of disclosure but put it aside because the motives had not been shown to have substance, for various reasons.
2. The Tribunal then concluded as follows:

98 In relation to the redactions on the basis of cl 1 (d), I'm satisfied, particularly in light of the evidence provided by Ms Drummond, that even though the information sought relates to a report made by the Applicant, the public interest considerations against disclosure significantly outweigh those in favour of disclosure. In reaching this view, I have had regard to the circumstances in which the information was provided to police, community expectations that such information will remain confidential unless disclosure is required by law in the broader impact upon police operations if information of this nature was disclosed.

99 In relation to the personal information redacted from the COPS Report, I am satisfied that in this matter the public interest considerations against disclosure significantly outweigh public interest in favour of the disclosure of the redacted information.

1. In addition to the contentions made in the Grounds for Appeal attachment to his Notice of Appeal, Mr Adams provided written submissions lodged on 21 October 2024 and written "Rebuttal" submissions lodged on 11 November 2024. He also made oral submissions at the hearing of the appeal. In a Reply lodged on 26 September 2024 the respondent set out various submissions against the grounds of appeal. The respondent also relied upon written submissions lodged on 6 November 2024 and also made oral submissions at the hearing of the appeal. We have considered all of this material.

Consideration of question of law-Ground 1 (apprehended bias)

1. Section II 3 of the written submissions lodged on 21 October 2024 headed "Bias in the Original Decision" contained the following:

The decision by Senior Member Mobbs to uphold the redaction suggests potential bias by shielding the individual responsible for a criminal act rather than protecting an informant or legitimate witness.

In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, the High Court held that any reasonable apprehension of bias undermines confidence in the decision-making process.

Protecting a wrongdoer undermines transparency and denies me the opportunity to identify the responsible party and pursue legal recourse.

1. The contention of bias was expanded upon in the "rebuttal" submissions lodged on 11 November 2024. In response to the respondent's submissions it was submitted that their submissions "fail to address the significant impact of the Tribunal's decision on my ability to proceed with legal remedies and the indications of bias arising from the extended delay and procedural obstacles." The delay referred to was the 5- month period between the date of the hearing and the date that the Tribunal's decision was issued. It was then submitted:

The extended delay and the Tribunal's decision appear to disregard the urgency of my situation and the procedural requirements for filing a statement of claim. Senior Member Mobbs' postponement of the decision, despite knowing that I lacked the means to serve the statement of claim due to the redacted report, raises a reasonable apprehension of bias. This bias is further suggested by the decision's practical effect of protecting the police and obstructing my access to justice.

1. The matters relied upon are not capable of leading to a conclusion of apprehended bias. To a significant extent Mr Adams seeks to infer such bias from the result of his proceedings but that simply does not follow. Otherwise, there is no basis for a conclusion that the Tribunal knew that he lacked the means to serve the statement of claim due to the redacted report and the period of time that it took to issue the decision is not a basis upon which apprehended bias could be established.
2. Accordingly, we reject Ground 1 of the appeal.

Consideration of question of law-Ground 2 (alleged error in the construction of cl 1 (d))

1. We see nothing in the text or objects of the GIPA Act, or in the case law authorities, which requires cl 1 (d), or cll 3 (a), 3 (b) or 4 (d) for that matter, to be read as excluding information supplied by an actual or suspected wrongdoer or excluding information about such a person. Mr Adams did not point to any specific basis in the legislative provisions or case law authorities that required such a construction. We reject this ground of appeal.

Consideration of question of law-Ground 3 (alleged failure to ask the right question/failure to have regard to a relevant consideration)

1. We do not accept that the Tribunal failed to consider the access issue before it on the basis that the information was about, or was information supplied by, an actual or suspected wrongdoer. On the contrary, the Tribunal expressly referred (at [69] and [75]) to Mr Adams submission that confidentiality protections should not benefit such an individual and that in these circumstances privacy rights should be outweighed by the public interest in holding wrongdoers accountable.
2. Furthermore, it is obvious from both the unredacted and redacted versions of the COPS report that much of the information to which access was sought related to potential wrongdoing in respect of the camera and related to such individual(s) as might be responsible for such wrongdoing. Yet further, it is apparent from the Tribunal's reasons that it considered that disclosure of the redacted information sought by Mr Adams was not a pre-requisite to the achievement of accountability for wrongdoing (a matter we expand upon when dealing with Grounds 6 and 7 below).
3. Accordingly, we reject Ground 3 of the appeal.

Consideration of question of law-Ground 4 (procedural fairness)

1. In his "rebuttal" submissions Mr Adams stated that procedural fairness was the "cornerstone of this appeal, as the withholding of critical information obstructs the ability to assess the integrity and thoroughness of the investigation." In his written submissions in chief he also submitted that withholding the café owner's identity meant he was unable to proceed with his personal injury proceedings thereby denying him access to justice and "violating principles of procedural fairness".
2. However, the principles of procedural fairness are concerned with the manner in which the decision under appeal was arrived at. It is not concerned with the complaints that Mr Adams has about his ability to pursue proceedings for personal injury or to pursue a complaint of police misconduct.
3. Mr Adams also submitted that there was procedural unfairness because of the 5- month delay in giving the decision. He submitted that justice delayed was justice denied. As was pointed out by the Appeal Panel in Ugur v Commissioner of Police [2023] NSWCATAP 261 (Ugur) at [93], whilst delay might give rise to procedural unfairness, for example, in the assessment of credibility of witnesses after a 5 year delay giving a decision, the circumstances in which to do so are rare. The delay here does not come close to the sort of extreme delay that might conceivably give rise to procedural unfairness.
4. Later in these reasons, we deal with contentions made by Mr Adams in oral submissions concerning new evidence about the nature of the person who supplied the information redacted in the COPS report, which he contended led to procedural unfairness.
5. Accordingly, we reject Ground 4 of the appeal in so far as it was based upon the material and submissions put to the Tribunal.

Consideration of question of fact-Ground 5 (alleged failure to adequately consider the public interest in transparency and accountability for wrongdoing)

1. In essence, Mr Adams contends that the Tribunal gave insufficient weight to the transparency and accountability consideration. He refers to the serious invasion of privacy that occurred.
2. Mr Adams submitted that there was high public interest in ensuring this kind of invasion of privacy was thoroughly investigated and that private rights could be pursued.
3. In large part, it seems that this ground of appeal is founded upon the submissions concerning Ground 3 (above) and Grounds 6 and 7 below, which grounds we reject (as explained below with respect to Grounds 6 and 7).
4. Transparency and accountability are also aspects of the statutory presumption in s 5 and the legally enforceable right set out in s 9, as well as the particular interest of Mr Adams in respect of his reporting of the incident. All these matters were addressed by the Tribunal and Mr Adams does not point to any specific error concerning these aspects of the reasoning.
5. We discern no plain or clearly mistaken factual error by the Tribunal in its consideration of transparency and accountability. The conclusions the Tribunal reached about the weight to be given to the public interest considerations in favour of disclosure were reasonably open to it.
6. For these reasons, we reject Ground 5 of the appeal.

Consideration of question of fact-Ground 6 (alleged failure to give sufficient weight to concerns about the adequacy of the police investigation)

1. As appears above, the Tribunal addressed Mr Adams' submissions about the issue he raised concerning the thoroughness of the police investigation. The Tribunal referred (at [51]) to the aspects of the investigation that Mr Adams had witnessed which he put forward in support of his submission, namely that the CCTV storage system was not confiscated, the claim that the CCTV was not connected was hastily accepted without further verification, no checks were made for additional cameras, notably in the female toilets and the police arrived more than one hour and 15 minutes after the initial call was made raising concerns about the response time and thoroughness of the subsequent investigation.
2. As outlined above, the Tribunal went on to express the view that there was a strong public interest in disclosure of information which could reveal police misconduct but in order for this to be a relevant matter there needed to be some reasonable basis in the material before the Tribunal for arriving at a conclusion that the redacted information could reasonably be expected to reveal misconduct. The Tribunal then made it clear that it had looked at the redacted version and expressed the conclusion that ".. there is nothing in the redacted COPS Report which would support the allegations made by him." Having looked at the redacted version ourselves, we see no reason to disagree with that view.
3. Later in the reasons for decision when considering the personal factors in favour of disclosure (at [96]), the Tribunal examined Mr Adams submission that he wished to pursue a complaint about the police handling of this matter. In this context, the Tribunal indicated that it was not persuaded this was a personal factor in favour of disclosure in circumstances where there was no evidence that Mr Adams had made any enquiries with the LECC about the information required for making a complaint and it appeared that he already had sufficient information to enable him to institute a complaint, but there was no evidence that he had done so.
4. Mr Adams does not point to any factual error in this reasoning.
5. In his "rebuttal" submissions Mr Adams said that the Tribunal's conclusion that there was "no evidence" to support allegations of misconduct disregards the legitimate basis for questioning police conduct. The Tribunal referred (at [54]) to the respondent's contention that there was no reasonable basis to believe that there was misconduct, negligence, unlawful conduct or improper conduct by the police in relation to the event. However, the Tribunal did not say that it agreed with that submission or that there was "no evidence" to support Mr Adams misconduct allegations. As we have already mentioned, the Tribunal expressed the view that Mr Adams already had sufficient information to enable him to institute a complaint.
6. We do not discern any plain or clearly mistaken factual error in any aspect of this reasoning by the Tribunal. The conclusion it reached about the weight to be given to this factor was reasonably open to it.
7. Accordingly, we reject Ground 6.

Consideration of question of fact-Ground 7 (error to conclude there were alternative legal avenues to obtain information required to commence civil proceedings against the alleged wrongdoer)

1. The Tribunal's conclusion (at [50]) to give Mr Adams intention to commence legal proceedings against the alleged wrongdoer minimal weight flowed from two factors. First, it was not apparent that Mr Adams had a reasonable basis for commencing any such proceedings. Secondly, Mr Adams had not shown why he needed to rely upon the COPS report to obtain necessary information about who to sue and how to serve legal documents in circumstances where he had personal knowledge of the business involved and he had not made any independent enquiries about the café in its management structure (at [96]). Furthermore, the Tribunal indicated that it was not satisfied that Mr Adams had established that this was indeed his motive ([95]-[96]).
2. The Tribunal (at [47]) referred to the respondent's submission that even if Mr Adams did not have sufficient information to ascertain the identity of a prospective defendant, there were other avenues available to him, including the ability to make an application for preliminary discovery. However, the Tribunal did not express any conclusion about this submission. Instead, it relied upon the matters we have just referred to.
3. In his "rebuttal" submissions Mr Adams submitted that the Tribunal placed undue and improper emphasis on the availability of alternative legal avenues.
4. This ground of appeal and the "rebuttal "submissions are incorrect about the reasoning of the Tribunal.
5. Accordingly, we reject Ground 7 of the appeal.

Consideration of question of fact-Ground 8 (new evidence)

1. As to the ground of appeal based upon new evidence, in his written material Mr Adams sought to rely upon his discovery after the Tribunal's decision that the internet café was not registered with ASIC. In his attachment to the Notice of Appeal he said that this information was highly relevant to the case as it indicates that the business may have been operating illegally which directly impacted the public interest in full disclosure of the police report because it called into question the integrity of the business involved in the privacy violation. Additionally, he submitted that this discovery complicated his ability to file a statement of claim and that had this information been available during the original hearing it could have influenced the Tribunal's decision.
2. Mr Adam's "rebuttal" submissions included:

(1) The evidence about the unregistered status was relevant because it directly challenged the credibility of the business involved in the original investigation and raised legitimate public interest questions about the business's adherence to regulatory standards.

(2) The evidence was discovered after the Tribunal's decision in circumstances where before the incident in question Mr Adams had checked that the business name was indeed registered and found an address for the business at a house in Sydney. Mr Adams said that after the incident the business was deregistered which strongly suggested that the owner anticipated potential legal action for personal injury from customers and acted pre-emptively to avoid accountability.

(3) This discovery after the incident showed that he had carried out "due diligence" in obtaining relevant evidence before the hearing.

1. The respondent submitted that leave to rely on new evidence should not be granted because the evidence referred to should have been obtained before the hearing. Secondly, Mr Adams had not identified how the new evidence could possibly have affected the outcome of the primary proceedings.
2. In Ugur v Commissioner of Police [2023] NSWCATAP 261 the Appeal Panel stated at [139].

Generally, to be admitted, fresh evidence must satisfy three conditions: it could not have been obtained with reasonable diligence in the original proceedings; there is a high degree of probability that, if admitted, there would have been a different result in those proceedings, and the evidence must be credible: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160, Clarke JA (Sheller JA agreeing); Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202; [2015] NSWCA 30 at [68] per Sackville AJA.

1. We fail to see how this new evidence could have any bearing upon the outcome of the public interest weighing exercise that the Tribunal was required to undertake, let alone that there was a high degree of probability that if admitted the result would have been different. The reasoning of the Tribunal concerning the exposure of any police misconduct and concerning Mr Adams intention to bring civil proceedings remain unaffected by this new evidence. As to the latter, if anything, Mr Adams statement that he had checked the business registration before the incident suggests that he had additional relevant information concerning the identity and location of the owner of the business at the time of the incident to assist him with the commencement of proceedings.
2. For this reason alone, we would refuse the grant of leave in respect of this new evidence.
3. In his written submissions the only order Mr Adams sought concerning new evidence was that he sought leave to introduce ASIC's response confirming the unregistered status of the internet café. It was only this new evidence that was addressed by the respondent in written submissions.
4. On the other hand, in the attachment to the Notice of Appeal Mr Adams also referred to new evidence consisting of letters and emails from the NSW Police and the LECC which he said "failed to address the issues raised regarding the adequacy of the police investigation into the hidden camera in the men's toilets...". Although not addressed in the submissions, we, nevertheless, fail to see how such correspondence after the hearing, if admitted, shows that there was a high probability that the decision would have been different.
5. At the hearing of the appeal, Mr Adams made submissions to us about his contention that the person the subject of the redaction was a police informant in respect of an unrelated matter.
6. Mr Adams informed the Appeal Panel that there had been a recent development about this, namely that in correspondence with the solicitors for the respondent he had asked if the owner of the premises had informant protection and whether he was an informant in an unrelated matter, to which the reply had been that the respondent did not give out such information. We were not shown this correspondence.
7. Mr Adams made oral submissions about this matter. His submissions included that it resulted in procedural unfairness to Mr Adams because he was not able to address the access question on the basis of this information which had been concealed from him.
8. We do not grant leave to rely upon such new material. His contention does not rise above unsupported assertion. As to this, we should note that nothing in the redacted material provides any support for the assertion.
9. Furthermore, it is far from clear how any such new evidence could affect the outcome of the decision, let alone show that there was a high probability that the outcome would have been different.
10. For these reasons, we reject Ground 8.

Consideration of fact-Ground 9 (against the weight of evidence)

1. The limited submissions that Mr Adams made in support of this ground of appeal consisted of material set out in the grounds of appeal document attached to his Notice of Appeal. He did not address this ground of appeal as a separate matter in his written or oral submissions.
2. A decision under appeal can be said to be "against the weight of evidence" where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member: Collins v Urban [2014] NSWCATAP 17 at [77(2)].
3. The first problem for Mr Adams in respect of this ground of appeal is that we were not supplied with a transcript of the hearing showing the oral testimony that was given. This alone is sufficient reason to reject this ground of appeal.
4. Furthermore, as we have already indicated, we consider that the Tribunal's conclusions in respect of the weighing exercise based upon the evidence that the Tribunal referred to in its reasons were reasonably open to it.
5. Accordingly, we reject Ground 9.

Additional matter about the redacted version raised by the Appeal Panel

1. At the hearing of the appeal, following our review of the unredacted version of the COPS report, we raised with the respondent a question whether the Tribunal had, in truth, considered the material redacted in the fourth paragraph of the passages between the asterisked lines which contained the content of statements made by the person who spoke to the police which information went beyond the identification of personal details of the person.
2. As to this, we pointed out the extent of the redacted material in this paragraph which did not emerge clearly from the Tribunal's outline of the redactions in the reasons for decision. We also made reference to the apparent emphasis the Tribunal had given in the reasons for decision upon the need to protect from disclosure personal information such as details of a person's name, address, telephone number and place and name of business.
3. Mr Roberts, solicitor, who appeared for the respondent presented arguments to the effect that the Tribunal had addressed this different category of information. At the very least it had done so, implicitly.
4. Having considered the redactions, the identification of the basis of the particular redactions in the fourth paragraph which made distinct reference to cl 1(d) of the Table in section 14 unlike the other redactions and the totality of the Tribunal's reasons, in particular, its reliance upon cl 1 (d), as distinct from the "personal information" grounds in cll 3 (a) and 3 (b), we are satisfied that the Tribunal did direct itself to this distinct category of information. We are also satisfied that the Tribunal gave proper and adequate consideration to the question whether this distinct category of information was covered by cl 1 (d) and to the weight to be given to the public interest against disclosure in respect of such category of information.
5. As to this, we note, as well, the separate treatment by the Tribunal in respect of these two distinct categories of information when it came to carry out the s 13 balancing exercise: see at [98] and [99].
6. Accordingly, we do not discern any appealable error by the Tribunal in respect of its consideration of all of the redacted information.

1. For the above reasons, we make the following orders:

(1) The application for leave to appeal is refused.

(2) The appeal is dismissed.

(3) Pursuant to s 64 (1) of the Civil and Administrative Tribunal Act 2013 (NSW) the unredacted copy of the NSW Police Force COPS report E 77XXXX17 adduced in evidence by the respondent at the hearing of the appeal on 4 December 2024 but not shown to the appellant is not to be published or disclosed to the appellant.

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.