Atkin v Department of Communities and Justice

Atkin v Department of Communities and Justice - [2025] NSWCATAD 39 - NSWCATAD 2025 case summary — Zoe

[11]

Evidence of Paul O'Reilly

In summary, Mr O'Reilly's affidavit evidence was in quite general terms. He discussed the "paramount function of Youth Justice" to protect young persons in detention. He listed measures implemented since 2018 "to identify and avoid the risk of harm to young persons in detention" (including a table showing a percentage decline in incidents from 2018 to 2022). He expressed a concern about the effect that disclosure of the CCTV footage would have on the young people who were, or had been, in custody. He also spoke of the risk of harm to, and retaliation against, Youth Justice staff; he said the functions of facilitating the proper control and management of detention centres, and maintaining discipline and good order among detainees relies on Youth Justice being able to ensure the safety of staff members. He referred to CCTV systems and Surveillance Policies, but without much specificity. He was concerned that security would be prejudiced where the tension between Youth Justice staff and detainees was aggravated due to disclosure of the footage, leading to retaliation against officers (including from "gang affiliates" of detainees. He was "particularly concerned that officers who remain employed at the Centre face a significant risk of harm… even if their faces are pixelated".
He also said "Youth Justice does not have any capacity in-house to pixelate the CCTV footage"; he referred to costs of pixelation, which I have addressed below in these reasons.
Under cross-examination, Mr O'Reilly said that Person X was an officer within youth detention, "much of" Person X's conduct was contrary to law and policy, and he was "advised that" Person X was subject to a misconduct investigation. The investigation found that Person X had committed misconduct and a penalty was issued. When pressed, he said that Person X remained employed, but now worked on a "casual basis". He confirmed that this casual employment of Person X could bring him into contact with detainees in youth detention. He said that "from his recollection" the fine was $500, and the length of the monitoring plan was six months.
Mr O'Reilly was also cross-examined about evidence that he had given at the Disability Royal Commission (the Royal Commission). The Applicants submitted that as a result of his answers to those questions, Mr O'Reilly's evidence "should be treated with a great deal of caution", pointing to alleged inconsistencies with, or his admitted clarification required to, evidence that he had given at the Royal Commission.
Mr O'Reilly was taken to the Privacy and Personal Information Policy annexed to his affidavit (TB142). He confirmed he was responsible for the implementation of that policy, which was required to be followed and which was developed, in part, to meet the requirements under s 102 of the Children (Detention Centres) Act 1987 (NSW) (CDC Act).

[12]

Evidence of Dr Ruth Marshall

Dr Marshall is the Principal Psychologist of Youth Justice NSW (Youth Justice). Dr Marshall confirmed the contents of her Affidavit affirmed on 2 December 2022 which was admitted into evidence. Although she had agreed to be bound by the terms of the Expert's Code of Conduct in the Tribunal's Procedural Direction 3, it was accepted at the hearing that she was not providing evidence in the capacity of an expert witness. As an employee of the Respondent, that is clearly correct.
Dr Marshall has over 30 years of experience in primary care as a psychologist, but now has a supervisory role. She is in charge of the various supervisors and teams of psychologists who work at the Centre and other youth detention facilities in NSW. She said that there was a clinical manager and four psychologists at the Centre.
She confirmed she had viewed the CCTV footage. She agreed that it showed an assault by a Youth Justice officer [Person X] on a young person.
In summary, her evidence was that viewing the CCTV footage would, in her clinical opinion, "be a potentially traumatic experience" and carried "a risk of traumatic impact" for former and current detainees within Youth Justice, the young people and staff in the CCTV footage, and other Youth Justice staff. She said this would be the case whether or not the footage was pixelated.
I have had regard to her Affidavit, which includes the following statements which are broadly consistent with those of Mr O'Reilly: 25. As those children and young people were engaged with the Youth Justice system, they are already likely to have suffered significant levels of developmental trauma. 26. The ABC's broadcast of the CCTV footage, even in pixelated form, and the widespread attention it is likely to attract, may cause those who personally witnessed the assault to re-experience the event, exacerbating any existing psychological distress or mental health issues. Re-traumatisation will have a negative impact on their rehabilitative progress. 27. Public broadcasting of the footage and its subsequent media attention is also likely to have a detrimental effect on all current Youth Justice staff who appear in the footage, but also for any staff who have existing mental health concerns including post-traumatic stress. The consequence of public broadcasting are exacerbated by the fact that the Youth Officers may be identified by certain colleagues regardless of whether or not their faces are pixelated. 28. The ABC's broadcast of the CCTV footage, even in pixelated form, would have a similar, and potentially more harmful, impact on the children and young people currently detained at the Centre. While these children are being held in detention it is our job to support them in overcoming past trauma while addressing their criminogenic needs. 29. While Youth Justice may block the ABC reports on the assault at the Centre children and young people are able to make phone calls and may become distressed following contact with family members, partners and/or friends who have seen the footage.
She also spoke, in general terms, to the risk of persons outside the youth justice system who had experienced trauma or mental health issues.
Dr Marshall was cross-examined at some length about the procedure for conducting risk questionnaires and comprehensive psychological assessments on newly admitted detainees. This appeared to ground the Applicant's submissions that her evidence in these proceedings was at odds with testimony given to the Royal Commission by Mr O'Reilly.
She reconfirmed her view that making the footage available for viewing by the children and young people currently being detained - whether those persons were identifiable from the footage or not - would have "adverse and traumatic effects" on them.
Under cross-examination, she confirmed that part of either trauma focussed cognitive behaviour or therapy, or the narrative therapy performed on detainees, could involve exposure of the young person to previously traumatising events. She said that was "if they're ready to talk about that", and "we don't do that in custody though - that's something we're more likely to do in the community because custody, itself, we know is traumatic potentially."
In her affidavit at [32], she had also said that being held in custody is itself a "traumatic experience". Under cross-examination, she distinguished between a traumatic "experience" and a traumatic "event".
She provided no evidence as to trauma arising from the actual event (the incident), or what psychological assistance had been provided, to those present.

[14]

The post-hearing submissions and change to consent

At the conclusion of the hearing on 8 June 2023, the Tribunal made the following orders (and/or directions): 1. The decision is reserved. 2. Applicant to file any reserved submissions within 7 days of this order. 3. Respondent to file any reserved submissions within 14 days of this order.
Further "reserved submissions" were filed by both parties after the hearing per Orders 2 and 3 above.
The purpose (as adduced from the Transcript) was to invite further submissions on whether the Tribunal could make orders to permit pixelation by the ABC and, if so, what orders the Applicants would propose. However, the Applicant had also raised with the Tribunal at the hearing that Young Person A now required her face to be pixelated (ie. the form of her consent may need to be amended).
That consent by Young Person A was amended, as foreshadowed, and a new form of consent accompanied the Applicants' "reserved submissions". It also correctly referred to the application being made to the Respondent, and not to "NSW Police". The Respondent then submitted, in its "reserved submissions", that this was an amendment or reformulation to the scope of the original "access application" for the purpose of s 49 of the GIPA Act, that the Respondent did not provide consent to that amendment, and the Tribunal therefore had no jurisdiction to determine the proceedings.
I disagree with the Respondent. I find that there was no "amendment" to the access application as a result of the change to the terms of the consent. The access application remains an application for access to the same "government information" as described in the first sentence of the request. The Tribunal is entitled to, and should, have regard to "up to date" information, including any new "relevant factual material" put before it: see s 63(1) of the ADR Act, Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77; DP Lazanas in Rogers and Australian Securities and Investments Commission [2024] AATA 3161 (in their application to a tribunal) at [15], and authorities there cited. Here, there is new and updated factual information relating to the consent.
The disputed decision is the decision, made under s 58(1)(d), to refuse access to the CCTV footage (in either original or pixelated form). That is a reviewable decision under s 80(d) of the GIPA Act.
I therefore find that the Tribunal has jurisdiction to hear this matter, and to consider and review all additional materials placed before it.
The Tribunal's jurisdiction is enlivened by section 100 of the GIPA Act.

[16]

Access to information under the GIPA Act - legislation

The GIPA Act facilitates access to NSW government information to the public by application for access unless there is an overriding public interest against disclosure. Section 3 says: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by - (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament - (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
The CCTV footage is "government information" as defined in s 4 of the GIPA Act.
Section 5 creates a presumption in favour of the disclosure of the government information to an applicant unless there is an overriding public interest against disclosure. Section 9(1) gives the applicant a legally enforceable right to be provided with the information in accordance with Part 4, unless there is an overriding public interest against disclosure.
Section 12 clarifies that there is a general public interest consideration in favour of the disclosure of government information (s 12(1)) and that there is no limit on the public interest considerations supporting such disclosure that may be taken into account (s 12(2)). The note to that section includes the following 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. … (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.
Section 13 is key for the operation of the public interest test under the GIPA Act and provides: 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.
Section 14 of the GIPA Act provides (relevantly): 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. …
Section 11 of the GIPA Act states: 11 Act overrides secrecy provisions in other legislation This Act overrides a provision of any other Act or statutory rule that prohibits the disclosure of information (whether or not the prohibition is subject to specified qualifications or exceptions), other than a provision of a law listed in Schedule 1 as an overriding secrecy law. Note - For overriding secrecy laws it is conclusively presumed that there is an overriding public interest against disclosure of the information. Other secrecy laws are to be taken into account as considerations against disclosure in determining whether there is an overriding public interest against disclosure. See section 14.
Section 15 lists five principles that must be complied with when a determination as to whether there is an overriding public interest against disclosure of government information is to be made: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
An agency must take reasonably practicable steps to consult with a person before providing access to information relating to the person in response to an access application if it appears that the information includes personal information about the person, the person may reasonably be expected to have concerns about the disclosure of the information, and those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information: s 54(1) and (2)(a).
In conducting the balancing test in s 13 of the GIPA Act, s 55(1) says that the following three factors ("personal factors of an application") may be taken into account either in favour of, or against, the disclosure of the information: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant.
Section 72 applies to the forms of access, and provides: 72 Forms of access (1) Access to government information in response to an access application may be provided in any of the following ways - (a) by providing a reasonable opportunity to inspect a record containing the information, (b) by providing a copy of a record containing the information, (c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned), (d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format. (2) The agency must provide access in the way requested by the applicant unless - (a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) to do so would be detrimental to the proper preservation of the record, or (c) to do so would involve an infringement of copyright, or (d) there is an overriding public interest against disclosure of the information in the way requested by the applicant. Note - Decisions about how to provide access are reviewable under Part 5.
An agency cannot impose any conditions or restrictions on the use of disclosure of information when the agency provides access to the information in response to an access application: s 73(1). In short, it is disclosed to the world at large. There can be no restrictions put on it. This is reinforced by s 15(e) set out above.
However, Section 73(2) provides that a condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information.
Section 74 permits the deletion of information in certain circumstances: 74 Deletion of information from copy of record to be accessed An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.
And section 75 provides as follows: 75 Providing access by creating new record (1) An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information. (2) An agency's obligation to provide access to government information in response to an access application does not require the agency to do any of the following - (a) make a new record of information held by the agency, (b) update or verify information held by the agency, (c) create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency.

[18]

"Could reasonably be expected to" have an effect

Some of the examples in s 12, as well as the requirement in all of the public interest considerations against disclosure in the Table to s 14, refer to matters which "could reasonably be expected to" have the nominated effect. As stated in Hurst at [56]-[58]: 56. Mention must be made of the requirement, common to all the public interest considerations against disclosure in the Table to s 14, that disclosure "could reasonably be expected to" have the nominated effect. The words "could reasonably be expected to" have been the subject of considerable judicial consideration with respect to their use in the Freedom of Information Act 1989 and the Freedom of Information Act 1982 (Cth). They are to be given their ordinary meaning: Attorney-General's Department v Coc k croft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words - "... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like." 57. Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 that , at [61] - "... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act". And the same approach should be taken to the expression "reasonable grounds" when it is used in s 58(5) of the Act." See also XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2. 58. It is necessary for Council to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect.

[19]

Public Interest considerations in favour of disclosure (s 12)

As noted above, there is a general public interest consideration in favour of the disclosure of government information (s 12(1)).
For the purpose of s 12(2), the Applicant submits that the following (further) public interest considerations in favour of disclosure: 1. To enable scrutiny of the effective exercise of the functions and operations of youth justice detention centres, and in particular interactions between the children detained within youth justice detention centres and youth justice officers; 2. To publicise concerns about the welfare of children subject to control in such centres; 3. To encourage public debate about the appropriate management of youth justice detention centres; 4. To inform the public about the incidence of the assault of children confined in youth justice detention centres; 5. To inform the public about the incidence of the assault of children confined in youth justice detention centres; 6. To bring attention to the fact that assaults in youth justice detention centres may be witnessed first-hand by other persons beyond the victim and perpetrator(s), including other children and staff members, revealing the potential for trauma, distrust and disfunction to extend beyond the actual incident of violence; 7. To bring awareness to the potential wider impacts on community safety caused by the incidence of trauma in environments that are aimed at rehabilitation, given the risks of resulting distrust in authority and reoffending; 8. To enhance transparency and accountability to the Australian public in circumstances where the operations of State-owned youth justice detention centres are funded by the taxpayers (even where the reality may be unpleasant or upsetting); and 9. To potentially prompt further investigation and enquiry at a State or national level, with the possible outcome of legislative or policy changes designed to address systemic deficiencies in the operation and management of youth justice detention centres.
The Respondent acknowledges that there is a public interest in favour of disclosing information that could reasonably be expected to promote open discussion of public affairs and enhance government accountability. But, it submitted: The strength of that public interest, however, has been diluted by time given that the incident depicted in the footage occurred four and a half years ago. Additionally, the Respondent submits that disclosing a copy of the footage to the Applicants is not necessary to enable them to publicly report the results of their investigative journalism about the assault. The Applicants have indicated that [Young Person A] may be co-operating with their inquiries, which suggests the Applicants have access to information [Young Person A] can provide in relation to the assault. This factor should also be given significant weight and indicates that the public interest considerations in favour of providing the Applicants with the footage are outweighed by the overriding public interest considerations against disclosure.
I accept that the public interest considerations put forward by the Applicants are real and significant. I do not accept that the passage of time has the "diluting" effect contended by the Respondent.
The safety of children in custody is, as the Respondent itself acknowledges, of "paramount importance". This is a clear example of a child being put at risk. There are well-known examples of previous media coverage and other reports regarding other similar incidents which establish the public importance of issues relating to youth detention: 1. The reporting of the incident at the Don Dale Youth Detention Centre in the Northern Territory in 2016 led to the dismissal of a Minister, a call for an independent inquiry, and the announcement of a Royal Commissioner (TB229 at [23]-[26]). 2. Relevant to NSW, a Ministerial Review into the riot at Frank Baxter Detention Centre was issued in 2019. The forward to that review included the following statement (TB300): While the review recognises our Detention Centres have many successes, it is very clear the current levels of assaults occurring on detainees and staff cannot continue.
I also have no hesitation in finding that disclosure of the CCTV footage, involving an incident against a young person in custody, would be reasonably likely have the following effects specifically used as examples in s 12(2) of the GIPA Act: 1. promote open discussion of public affairs, enhance Government accountability and contribute to positive and informed debate on issues of public importance; 2. inform the public about the operations of agencies; and 3. reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
I therefore find that each of the factors listed by the Applicants, and in my consideration above, are public interest considerations in favour of disclosure, can be reasonably expected to occur, and are of significant weight.
This is also reinforced by the "personal factors of the application", in which the Applicants are seeking access to footage of the incident for the purpose of preparing a story for circulation or broadcast by way of a television program or other media, with the full knowledge of Young Person A.

[20]

Public interest considerations against disclosure

In this case, there are no conclusive presumptions against disclosure for the purpose of s 14(1).
Therefore, the Respondent is limited to the specific public interest considerations against disclosure that are listed in the Table to s 14(2) of the GIPA Act.
The Respondent relies upon the public interest considerations against disclosure in clauses 1(f), 2(d), 2(h), 3(a), 3(b), 3(f) and 6(1) of that Table, which are set out below: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (f) prejudice the effective exercise by an agency of the agency's functions … 2 Law enforcement and security 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) endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person, … (h) prejudice the security, discipline or good order of any correctional facility. … 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - (a) reveal an individual's personal information, (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, … (f) expose a person to a risk of harm or of serious harassment or serious intimidation, … 6 Secrecy provisions (1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.
"Personal information" is defined in clause 4 of Schedule 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, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
I agree with the Respondent's submissions that for the purposes of considering the overriding public interests against disclosure outlined in clauses 1(f), 2(d) and 2(h) of the Table, the term "prejudice" is to be given its ordinary meaning, i.e. "to cause detriment or disadvantage" or to "impede or derogate from": Hurst at [60]; see also Griffin v Sydney Trains [2020] NSWCATAD 234 at [50].

[23]

Trauma and increasing tensions

The Respondent relied on the Affidavits of Dr Marshall and Mr O'Reilly in submitting that "the functions of Youth Justice NSW, which is a business unit within the Department, would inevitably be prejudiced if the footage was disclosed, even in pixelated form".
The Respondent pointed to the "detrimental impacts" on the physical, psychological and emotional wellbeing of current detainees, and give rise to increasing tensions, such that they could not effectively carry out their functions under the CDC Act. It was noted that there had been incidents, including riots, at other similar facilities, as a result of tensions between detainees and staff.
It is not controversial, and I accept, that the Respondent has obligations in respect of the detention of young persons under s 14 the CDC Act, which requires them to ensure their wellbeing while in detention. This includes protecting them from harm that may impact them adversely either physical, psychologically or emotionally. The functions in s 14 of the CDC Act also refer to maintaining discipline, and facilitating the proper control and management of detention centres.
I accept that Dr Marshall and Mr O'Reilly have concerns as described in their evidence above. I accept they have referred to their views as to what "may result" if the footage is broadcast. However, their evidence is expressed in general terms. As noted in Turner v Corrective Services NSW (No. 2) [2013] NSWADT 232 at [32], it is not sufficient that the Respondent merely makes an assertion mirroring the requirement that the relevant risk 'could reasonably be expected' to occur.
In respect of detainees present at the incident, I consider the viewing of footage on television pales into insignificance, when compared to the trauma of the victim, and those present, when the incident occurred.
In respect of current or future detainees, the Respondent's own evidence was that the Centre can control what they watch.
To the extent that issues are raised by parents or friends of detainees, they are likely to have the detainee's best interests at heart.
In respect of staff, they should be trained to prepare for, and manage, incidents such as these. Disclosure of the footage could be expected to assist them in dealing with similar situations in a different manner. It could assist with an even further reduction in incidents as noted in the evidence of Mr O'Reilly.
In respect of the wider public, the ABC has provided (as noted above) its policies in respect of dealing with such sensitive information. In any event, I do not find that a general statement of this nature is of much evidential weight in light of the footage appearing daily on television and on social media.
I nonetheless find that this public interest consideration against disclosure applies in respect of Youth Centre staff if their identity is disclosed, because it could reasonably be expected that retaliation could occur. And I find that to be of medium weight.

[26]

Clause 2(h) … prejudice the security, discipline or good order of any correctional facility

To show that this is a relevant consideration against disclosure, the Respondent must establish that disclosure of the CCTV Footage could reasonably be expected to prejudice the security, discipline or good order of any correctional facility.
In its written submissions, the Respondent again pointed to the evidence of Mr O'Reilly and Dr Marshall, and reiterated the function of administering youth detention centres and being required to maintain security, discipline and good order among those held in those centres and facilitate proper control and management of them to ensure both their and the safety of Youth Justice officers; noting that the likelihood of trauma and risk of harm would give rise to increasing tensions.
The Respondent also said it would prejudice the operation of the Privacy Policy and the Surveillance Policy, noting its purpose was to ensure the confidentiality of information obtained in connection with the administration and execution of the CDC Act, and protect the privacy of detainees and staff/officers.
Mr O'Reilly referred to the Surveillance Policy at paragraph [19] of his Affidavit (a copy of the policy was at Annexure C). He said: I am also aware that the Surveillance Policy provides that the CCTV footage can only be viewed for the following purposes: (a) To detect, investigate or prosecute unlawful activity which may occur in Youth Justice Centres, (b) To facilitate the training and professional development of, and maintain the professional conduct of, Youth Justice employees and officers, and (c) To review incidents which have occurred in Youth Justice Centres and to debrief and brief employees and officers involved in those incidents and those supervising them.
There is nothing in the Surveillance Policy which refers to providing access to CCTV footage to a GIPA applicant. The policy refers to how access is to be provided upon request by an employee or other agency.
The Privacy Policy, as noted by the Applicants, specifically contemplated that access to information may be sought and granted in accordance with the relevant provisions of the GIPA Act and the PPIP Act.
Mr O'Reilly also pointed to obligations under the Work Health and Safety Act 2011 (NSW) (WHS Act) - which contained penalty provisions - and its obligations to manage risk.
The Respondent submitted that s 19(1) of the WHS Act imposed a duty of care on Youth Justice to ensure the safety of its staff when they are performing their duties or functions at the Centre. Further, s 19(2) imposed obligations to ensure that the health and safety of other persons is not put at risk within the Centre.
Both provisions require this to be undertaken "so far as is reasonably practicable". Nothing in these provisions extends, in my opinion, any of the matters referred to above in respect to "prejudicing" the health and safety of detainees, staff and other persons, being matters dealt with under the specific items listed in the Table in s 14(2) of the GIPA Act.
Relying again on the evidence of Dr Marshall and Mr O'Reilly, it said that harm to the health and safety of those persons was "more than a mere possibility, risk or chance", resulting in a compelling and significant public interest against disclosure of the footage. It said that "It is not speculative, fanciful, imaginary or contrived to expect that retaliatory behaviour, riots and defiance will be a likely consequence which could overwhelm and jeopardise the Youth Justice facilities".
The Applicant said that to take the Respondent's argument to its logical conclusion, there should never be a release of potentially triggering or traumatic material under the GIPA Act, because people who are currently detained within correctional facilities (whether adults or children) are likely to have suffered trauma, or be at risk of trauma, and thus there would be an overwhelming public interest against disclosure for the purposes of s 2(h) of the Table. That interpretation, it was said, would not be one which promoted the object of the GIPA Act, and was contrary to s 3(2)(b) of the GIPA Act.
In respect of the staff, however, I again conclude that disclosure of their identity on the footage would reasonably be expected to have the result specified in cl 2(h) and this is of medium weight.

[28]

Clause 3(b)… contravene an IPP under the PPIP Act

The Respondent submits that the disclosure of the information could reasonably be expected to contravene an information protection principle under the PPIP Act. The PPIP Act defines personal information in the same terms as cl 4(1) of Schedule 4 to the GIPA Act above. Section 18A of the PPIP Act provides that a public sector agency that holds personal information must not disclose the information to a person or other body unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.
The Respondent submits that none of the exemptions in s 18A apply to the CCTV footage for the following reasons: the disclosure of the personal information of a third party to the applicant is not directly related to the purpose for which the information was collected; the individuals concerned are not reasonably likely to have been aware of the disclosure nor have they been made aware of the disclosure in accordance with s 10 of the PPIP Act as it is not information which is usually publicly disclosed; and the disclosure is not necessary to prevent or lessen a serious and imminent threat to the life or health of any person.
These submissions are persuasive. I also note that third parties in the footage have not consented to any release of their personal information, and I accept that there is not a reasonably practical means for the Respondent to seek the consent of them all, considering so many years have passed.
I agree that this is a significant factor against granting access to the CCTV footage in its original form, in respect of all persons identifiable.

[29]

Clause 3(f) … risk of harm, serious harassment or serious intimidation

The Respondent submits that disclosure of the CCTV footage would reasonably be expected to expose a person to a "risk of harm or of serious harassment or serious intimidation". Those persons were identified as the staff members, and persons in general within the facility due to increasing tensions as a result of the footage being disclosed.
In OTB v Commissioner of Police, NSW Police Force [2019] NSWCATAD 114, at [77]-[79], Senior Member Blake SC reviewed and summarised several authorities that have considered cl 3(f) as follows: 77 The issue for determination is whether release of the information would expose people to a "risk of harm or of serious harassment or serious intimidation". It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it: Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 at [49]; Miskelly at [94]. 78 "Harm", "serious harassment", and "serious intimidation" are not defined in the GIPA Act. Their meaning received extensive judicial consideration by the Tribunal in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90. Each is to be seen as a separate matter to be considered: AEZ at [89]; Miskelly at [95]. 79 As to "harm", the Tribunal has held that the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. A detrimental effect may be to a person's physical, psychological or emotional wellbeing: AEZ at [85]; Miskelly at [96]. Mere discomfort or tension is not ordinarily enough: Ermel v Department of Finance and Services [2013] NSWADT 183 at [90]; Miskelly at [105].
Consistent with my findings above, I find there is a risk of retaliation if identifying features are disclosed. I therefore find that the public interest consideration against disclosure in cl 3(f) applies to the original CCTV footage and is of medium weight.

[30]

Clause 6(1) - secrecy

Under clause 6(1) there is a public interest consideration against disclosure of information if disclosure of the information could (disregarding the operation of GIPA Act) reasonably be expected to constitute a contravention of a provision of any other Act that prohibits disclosure of information, whether or not the prohibition is subject to specified qualifications.
The Respondent submitted that the secrecy provision in s 102 of the CDC Act applied, on the basis that there was no "lawful excuse" to disclose the CCTV footage, and therefore that section was a public interest consideration against disclosure for the purpose of s 6(1).
Section 102 of the CDC Act says: 102 Unlawful disclosure of information (1) A person must not disclose any information obtained, or to which the person otherwise has or had access, in connection with the administration or execution of this Act unless that disclosure is made - (a) with the consent of the person from whom the information was obtained, or (b) in connection with the administration or execution of this Act, or (c) for the purposes of any legal proceedings, or (d) in accordance with a requirement of the Ombudsman Act 1974 or with any request made by the Ombudsman, or (e) with other lawful excuse. Maximum penalty - 10 penalty units or imprisonment for 12 months, or both. (2) Without limiting the disclosures that may fall within subsection (1) (e), a person makes a disclosure with lawful excuse for the purposes of that paragraph if the disclosure is - (a) authorised by the Secretary, or (b) in accordance with an official policy made by the Secretary for the purposes of this section.
The Applicant submitted, inter alia, that it is clear from the wording of s 102 of the CDC Act that the potential qualifications in s 102(2) were not intended to limit the scope of the definition of a "lawful excuse" for the purposes of s 102(1). They pointed to s 15(a) of the GIPA Act that "agencies must exercise their functions so as to promote the object of this Act". They said that the concept of an application being made under the GIPA Act is also expressly contemplated under the Youth Justice NSW Privacy Personal Information Policy (Annexure C to A-POR1, at pp 41, 16, 27-8.)
I agree with the above submissions. Having regard to the terms of the GIPA Act and its objects, the Respondent's own policies, and noting that s 102(2) of the CDC Act is not intended to limit s 102(1)(e), I find that there is a lawful excuse for the provision of information in response to an application under the GIPA Act.
I note that the GIPA Act specifically sets out (at clause 1 of Schedule 1), a list of "overriding secrecy laws" that are conclusively presumed to result in an overriding public interest against disclosure of information. This includes, for example, s 21E of the Child Protection (Offenders Registration) Act 2000 (NSW) which prohibits the disclosure of information concerning "registrable persons" as defined in that Act. There is no similar listing of the CDC Act in clause 1 of Schedule 1.
If I am wrong in my conclusion above, and this public interest consideration against disclosure applies, I would find it to be of low weight.

[34]

What should be pixelated?

Under section 15(b), agencies must have regard to any relevant guidelines issued by the Information Commissioner (IC) when determining whether there is an overriding public interest against disclosure.
Both parties referred to Information Access Guideline 4 - Personal Information as a public interest consideration under the GIPA Act May 2022 (Guideline 4). Guideline 4 provided examples of what is meant by "personal information" under the GIPA Act, and includes, at paragraph 1.2 "photographs or audio or video recordings, including CCTV footage, which identifies individuals". It also said, at 1.5: Information will only be considered to be "personal" if it is about an individual whose identity is "apparent or can reasonably be ascertained". Obviously, the identity of the person will be apparent where the information includes his or her name. it may also be apparent where the person is not named. For example, a person's identity can be apparent through a photograph or CCTV footage. However, elements of a person's gait or body shape may not be considered sufficiently distinctive to enable identification [citing Seven News, referenced below].
Guideline 4 was updated in October 2023. Nothing extracted above has relevantly changed. Both versions also include the following statement at 2.7: 2.7 Other ways agencies may proceed when there are significant public interest considerations against disclosure are to …. redact any other information for which there is an overriding public interest against disclosure, or to create a new document. In particular, the GIPA Act provides that agencies must facilitate public access to government information contained in a record. That can be achieved by creating a new record or deleting information from a record that would otherwise result in there being an overriding public interest against disclosure of the record.
The IC has also published guidance titled "Managing access to audio visual information under the GIPA Act" which says: (at p 4, my emphasis): If the decision-maker believes that personal information may be revealed in the footage or contravene the PPIP Act or Health Records and Information Privacy Act 2002, the decision-maker could consider whether pixelation of that information could sufficiently address those concerns (see section 74 of the GIPA Act relating to deleting information to be accessed). … Consultation … AV information, especially CCTV footage, often captures third parties that are not related to the scope of a request for information. Agencies are able to decide whether it is reasonably practicable to consult with third parties. Having agency policies for dealing with these matters will assist in guiding decision making. …
The pixelation to delete "personal information" of individuals in the CCTV footage should be limited to the face and any body marks such as tattoos (although none were evident). This includes Young Person A. The change in her consent addresses some concerns raised by the Respondent in respect of identification by association. Having regard to cl 3(f) of the Table, the personal information of Youth Justice staff should also be pixelated.
I find that the personal gait, size, or hairstyles of the individuals would not be regarded as "personal information", in line with the guidance above, and also having regard to the length of time since the incident occurred.

[35]

Is pixelation an unreasonable diversion of resources or cost?

The Respondent relied on s 72(2)(a) in submitting that "Youth Justice" did not have the capacity to pixelate the footage themselves and that to do so "would interfere unreasonably" with the operations of the Department or would result in them "incurring unreasonable additional costs". I do not accept the Respondent's mere assertion that it is "not feasible", and that the Department (versus Youth Services) cannot undertake this task.
At the hearing, the transcript records that the only evidence before the Tribunal was contained in the Affidavit of Mr O'Reilly of 2 December 2022 at TB136-137: 23 The regular functions and role of Youth Justice do not include the pixelation of CCTV footage. Youth Justice's budget is fully allocated and does not extend to providing this service. It follows that Youth Justice does not have any capacity in-house to pixelate the CCTV footage. 24. I am not aware of any other agency that can assist Youth Justice with this work. I am informed by Mr Cahill that he has made inquiries of Corrective Services NSW and NSW Police to ascertain whether they could assist and that he has been advised: (a) Corrective Services NSW does not have any capacity in-house to pixelate video footage, and (b) that the NSW Police Forensic Imaging Unit has capacity to pixelate video footage, but only in exceptional circumstances. Further, the Police Media Unit pixelates footage for release to the media, but does not have capacity to assist other agencies. Both Units have confirmed they are unable to assist in this case. 25. For Youth Justice to undertake pixelation of the CCTV footage would require: (a) purchasing software to facilitate pixelation, and (b) allocating and training staff to perform pixelation, thereby taking them away from their regular roles and duties in performing the functions of Youth Justice. 26. Youth Justice has no budget allocated to undertake this activity. 27. If Youth Justice was required to pixelate CCTV footage for internal purposes, such as to facilitate staff training, that work would have to be outsourced to an external service provider. However, there is a shortage of such service providers. I am informed by Mr Cahill that, for example, while Corrective Services NSW has utilised the services of Sky Jellyfish Pty Ltd, it has closed its books to new work. 28. In my view, it is onerous to require Youth Justice to obtain quotes for pixelation of video footage simply to facilitate access applications under the GIPA Act. It would take staff away from the regular roles and duties in performing the functions of Youth Justice.
Although there is some inconsistency in the statements above, I accept it may be necessary for the Respondent to outsource the pixelation to an external service provider. The Respondent's evidence does not suggest an inability to put in place adequate confidentiality undertakings and/or other processes for this to be achieved. The use of one example (Sky Jellyfish) to assert a wider state of affairs relating to a "shortage" of service providers does not satisfy me that it is unreasonable. At the hearing, there was no evidence as to either the budget restrictions referred to, the costs anticipated to be involved, or any previous quotes obtained by the Department (or Youth Justice).
The Respondent's "reserved submissions" attached a quotation from Sky Jellyfish, dated some years ago. But the evidence of Mr O'Reilly set out above (which was not retracted) was that this company had "closed its books to new work."
The total length of the three videos containing the footage is 8 minutes. There is no sound. Further, section 72(2)(a) refers to the "agency"; here that is the Department of Communities and Justice, not Youth Justice. There were no submissions that Youth Justice should be regarded as a "separate agency" to the Respondent.
I therefore cannot be satisfied on the evidence before me that providing access to the Applicants of pixellated CCTV footage (to obscure the personal information of the individuals) "would interfere unreasonably with the operation of the agency or would result in the agency incurring unreasonable additional costs" for the purpose of s 72(2)(a).

[36]

Applicants' offer to undertake the pixelation

The Applicants offered to undertake the pixelation process of the CCTV footage, at their cost. It was proposed the Tribunal could make orders that unedited CCTV footage be provided to them, the ABC undertake the pixelation, the ABC return both the pixelated and unedited versions to the Respondent, and the Respondent grant access by providing the pixelated versions.
The Applicants submitted that any conditions that the Tribunal would impose are similar to the examples provided in s 73(2), being "steps on the journey" to when access is provided, and the access provision decision would be of the pixelated copy.
Reference was made by the parties to Seven Network Limited v South Eastern Sydney Local Health District [2017] NSWCATAD 210 (Seven Network). That case involved an application for disclosure of "incident reports and video of assaults on security and staff at hospitals since July 1, 2014". The respondent determined that the footage would not be produced. On review by the Tribunal, the applicant and Channel 7 as her employer had offered to undertake the pixelation of the footage at its own cost, either by paying for a third party retained by the respondent to undertake that task or by undertaking that task itself and returning the unedited footage to the respondent.
The Tribunal member said: 104. As the respondent submits, section 74 of the GIPA Act, which permits the respondent to delete information from a copy of a record to which access is to be provided, would permit the respondent to pixelate the identifying features from persons appearing in the footage. 105. The question remains as to whether, given that the respondent does itself not have the facility to pixelate the footage, the respondent's decision should nevertheless be affirmed. 106. Section 73 of the GIPA Act prohibits the imposition of conditions upon the use or disclosure of information to which access is provided. For this reason it is neither possible nor appropriate to provide the applicant with access to unpixellated footage on the basis that the applicant will pixelate the footage and return the unpixellated footage to the respondent.
In that case, the applicant had offered to pay the cost of pixelation by a third party to be performed under the direction of the respondent. Orders by the Tribunal to pay those costs were neither required, nor made. Pixelation of "Footage 2 and Footage 2" was ordered. That task was for the Respondent to undertake. Whether or not they were to use a third party was not within the terms of the orders.
I therefore disagree with the Applicants' submissions; the Tribunal has no power to make orders in the terms they have sought, because it would be the granting of access with conditions. That is not permitted under the GIPA Act, because under ss 15 and 73 of the GIPA Act no conditions can be imposed on the use of the CCTV footage once released.
The deletion of the personal information must therefore be undertaken by the Respondent.

At a glance

Court

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Judgment (39 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (9)